Davis v. United States , 550 F. App'x 864 ( 2013 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
COLIE L. DAVIS,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.
______________________
2013-5043
______________________
Appeal from the United States Court of Federal
Claims in No. 12-CV-0292, Judge Marian Blank Horn.
______________________
Decided: November 14, 2013
______________________
JOHN E. FITZGIBBONS, John Edward Fitzgibbons, PC,
of Denver, Colorado, for plaintiff-appellant.
RENEE GERBER, Trial Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for defendant-appellee. With
her on the brief were STUART F. DELERY, Acting Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
STEVEN J. GILLINGHAM, Assistant Director.
______________________
2 DAVIS v. US
Before RADER, Chief Judge, LOURIE, and O’MALLEY,
Circuit Judges.
PER CURIAM.
The Court of Federal Claims dismissed Mr. Colie Da-
vis’s claims for retirement pay for lack of jurisdiction.
The Claims Court held the six-year statute of limitations
had run for Mr. Davis’s claims. Davis v. United States,
108 Fed. Cl. 331 (2012). Because the Claims Court
properly held that the limitations period had expired and
that Mr. Davis’s claims were not continuing, this court
affirms.
I.
Mr. Davis was inducted into the Army in 1965 and,
except for a period between 1967 and 1968, was on active
duty until 1986. Davis, 108 Fed. Cl. at 334. In 1982, the
Army informed Mr. Davis by letter that he was barred
from reenlisting at the end of his then-current term of
service, set to expire September 28, 1985. Id. Neverthe-
less, on June 18, 1985, Mr. Davis applied at Fort Jackson,
South Carolina, to extend his enlistment to May 31, 1986.
This extension would allow him to retire with 20 years of
service. Id. at 335. Mr. Davis had travelled from Germa-
ny to Fort Jackson (so he could retire in the U.S.) and,
when he applied for reenlistment, Mr. Davis’s file did not
contain the bar letter. Id. Without notice of the bar
letter, the officials in South Carolina approved his reen-
listment.
Before Mr. Davis completed the extended term, how-
ever, the reenlistment personnel discovered the bar. Id.
The Army appointed an Administrative Elimination
Board on January 15, 1986, to investigate whether Mr.
Davis should be discharged for “fraudulent entry” (mate-
rial misrepresentation, omission, or concealment of infor-
mation) related to extending his term of service. Id. at
335–36. The Elimination Board unanimously found
DAVIS v. US 3
fraudulent entry. Accordingly, Mr. Davis was discharged
on April 4, 1986 under a “general discharge.” Id.
On November 2, 2009, Mr. Davis filed an application
to the Army Board for Correction of Military Records
(ABCMR) to correct his records regarding fraudulent
entry. The ABCMR denied his application on August 3,
2010. Id. at 336–37. Mr. Davis then filed a complaint in
the Claims Court, as amended, on July 3, 2012. Id.
at 337; J.A. 18. Mr. Davis claimed the decisions of the
Elimination Board and the ABCMR were erroneous and
that his discharge was unlawful. As relief, Mr. Davis
sought active duty back pay for early discharge, “retire-
ment pay” from the end of his sought reenlistment period
through the present and continuing forward, and “back
retired pay” from then through the present. He also
sought alteration of his military records. Davis, 108 Fed.
Cl. at 334; J.A. 18, 23–24.
The Claims Court dismissed the claims due to the six-
year statute of limitations on Tucker Act jurisdiction.
Davis, 108 Fed. Cl. at 338–40. The court applied Mar-
tinez v. United States, 333 F.3d 1295, 1303 (Fed. Cir.
2003) (en banc), which states:
The service member therefore has the right to sue
immediately upon discharge for the funds improp-
erly being withheld. Moreover, the courts have
made clear that a Tucker Act claim for back pay
accrues all at once at the time of discharge; the
claim for back pay is not a “continuing claim” that
accrues each time a payment would be due
throughout the period that the service member
would have remained on active duty.
The Claims Court held that “[a] date-of-discharge rule
applies to wrongful discharge claimants seeking back pay,
whether labeled by plaintiff’s counsel as ‘back pay,’ ‘re-
tirement pay,’ or ‘back retired pay.’” Davis, 108 Fed. Cl.
at 340. Accordingly, the statute of limitations had long-
4 DAVIS v. US
expired because “Mr. Davis’ claims accrued when all
events that fixed plaintiff’s pay claims occurred after the
Administrative Elimination Board issued its recommen-
dation to discharge plaintiff, and plaintiff received his
general discharge on April 4, 1986.” Id.
The court further rejected Mr. Davis’s argument that
the periodic non-payments were “continuing claims”
because Mr. Davis’s claims stem from “a single distinct
event, although with later adverse effects.” Id. at 343.
Mr. Davis appeals.
II.
This court reviews de novo the Claims Court’s deter-
mination that it lacks jurisdiction for a claim barred by a
statute of limitations. See, e.g., Wells v. United States,
420 F.3d 1343, 1345 (Fed. Cir. 2005); Brown Park Estates-
Fairfield Dev. Co. v. United States, 127 F.3d 1449, 1454
(Fed. Cir. 1997). The Claims Court’s jurisdiction in this
case stems from the Military Pay Act, 38 U.S.C. § 204
(2012), and the Tucker Act, 28 U.S.C. § 1491(a)(1) (2012).
Jurisdiction under the Tucker Act is bound by a six-year
statute of limitations. 28 U.S.C. § 2501. The statute of
limitations is strictly construed. Brown Park Estates, 127
F.3d at 1454. This court has jurisdiction under 28 U.S.C.
§ 1295(a)(3).
III.
On appeal, Mr. Davis continues to argue the merits of
his wrongful discharge claim. Mr. Davis argues that
Army Regulations create a “sanctuary period” between 18
and 20 years of service which should have precluded his
discharge. Appellant’s Br. 12–14. Mr. Davis also argues
that an improper military body discharged him. Id. at
14–15.
Regarding the statute of limitations, Mr. Davis argues
Martinez is distinguishable because that case was for
back pay, not an “ongoing claim for retirement pay.” Id.
DAVIS v. US 5
at 15–17. Mr. Davis also argues his claim is a “continuing
claim” under, e.g., Wells. Mr. Davis claims that every
month he does not receive retirement pay gives rise to a
continuing claim. Appellant’s Br. 15. Mr. Davis asserts
that his claim “can be broken down into a series of inde-
pendent and distinct wrongs or events.” Id. at 26.
Upon review, this case falls squarely within the rule
of Martinez. Regardless of the characterization of the
claim as “back pay,” “retirement pay,” or “back retired
pay,” Martinez governs in this case because the statute of
limitations started running at the time of Mr. Davis’s
discharge in 1986. A claim accrues “when all the events
have occurred which fix the liability of the Government
and entitle the claimant to institute an action.” FloorPro,
Inc. v. United States, 680 F.3d 1377, 1381 (Fed. Cir. 2012)
(quoting Goodrich v. United States, 434 F.3d 1329, 1333
(Fed. Cir. 2006)). In this case, the claim accrued at the
time of discharge. Indeed, Mr. Davis continues to argue
the merits of the alleged wrongful discharge as the basis
for the relief sought, an apparent admission that the
discharge initiated the claim.
This court also agrees with the Claims Court that Mr.
Davis’s claims are not “continuing.” Mr. Davis’s claims
for relief depend exclusively on his alleged wrongful
discharge that occurred in 1986, rather than any events
that occurred each time a check was withheld. Wells does
not alter this conclusion. In Wells, this court held that a
continuing claim arose where the government violated a
specific statutory provision each month by garnishing
wages from Wells’s retirement pay above the statutory
limit. The statute expressly provided for monthly deduc-
tions to satisfy debts, but the amount was strictly limited.
420 F.3d at 1346–47. Wells distinguished such repeated
statutory violations from cases like Mr. Davis’s where the
government purportedly committed:
6 DAVIS v. US
one alleged wrong[,] . . . which accrued all at once
at one point in time, even though it may have had
later adverse effects[,] . . . such as nonpayment of
annuities or wages, [and which] were not inde-
pendently accruing violations of any statutes or
regulations in themselves, but rather were merely
damages resulting from the single earlier alleged
violation by the government . . . .
Id. at 1346 (quoting Brown Park Estates, 127 F.3d at
1457). Mr. Davis’s claims are based on a single, distinct
event. They are not “inherently susceptible to being
broken down into a series of independent and distinct
events or wrongs, each having its own associated damag-
es.” Brown Park Estates, 127 F.3d at 1456.
IV.
In sum, this court rejects Mr. Davis’s arguments that
the claim for retirement pay is a “continuing claim.” Mr.
Davis’s remaining arguments regarding the statute of
limitations have been carefully considered and found
unpersuasive. Because Mr. Davis’s claim is barred by the
statute of limitations, this court declines to comment on
Mr. Davis’s arguments about the merits of his wrongful
discharge allegations. And because the Claims Court did
not err in dismissing the case for lack of jurisdiction, this
court affirms.
AFFIRMED